REPUBLIC OF TÜRKİYE COURT OF CASSATION General Assembly of Civil Chambers
Basis No: 2012/2-799
Decision No: 2013/389
Date: 20.03.2013
LAWSUIT: Following the trial regarding the “custody and child support” lawsuit between the parties; the judgment rendered by the Ankara 5th Family Court (dated 27.04.2010, Basis 2009/427, Decision 2010/574) for the dismissal of the main lawsuit regarding custody and the acceptance of the counterclaim regarding child support was appealed by the counsel for the parties. The 2nd Civil Chamber of the Court of Cassation (dated 05.07.2011, Basis 2010/16826, Decision 2011/11499) reversed the judgment regarding custody on the following grounds:
“…Establishing a personal relationship between the minor M. (born 7.12.2005), whose custody is with the defendant-plaintiff mother, and the plaintiff-defendant father every weekend from Saturday 09:00 to Sunday 18:00 would negatively affect the minor’s education, physical and mental development given the minor’s age. Furthermore, prohibiting the child from traveling abroad prevents the mother from fulfilling her custodial duties. Establishing a judgment without considering these aspects was improper…”
Following the reversal, the local court resisted the previous judgment regarding the custody issue. The General Assembly of Civil Chambers examined the file and rendered the following decision:
D E C I S I O N
The main lawsuit concerns custody (velayet); the counterclaim concerns child support (iştirak nafakası). The dispute brought before the General Assembly through resistance focuses on two points:
Whether establishing a personal relationship every single weekend would negatively affect the physical and intellectual development of the minor.
Whether the permanent prohibition of the child from traveling abroad constitutes an impediment to the mother’s fulfillment of custodial duties.
A) Regarding the Permanent Prohibition of Traveling Abroad: Restricting the minor from traveling abroad due to concerns that the child might be abducted by the mother not only disrupts the mother’s custodial duties but also violates the freedom of travel (seyahat özgürlüğü), which is a fundamental right under Article 23 of the 1982 Constitution.
Fundamental rights and freedoms may only be limited by law and for a specific duration based on reasons specified in the Constitution without touching their essence (Art. 13). According to Article 23, it is in principle impossible to limit freedom of travel permanently. This freedom may only be limited temporarily as a precautionary measure for the protection of the child. Furthermore, Article 2 of Protocol No. 4 to the ECHR guarantees that everyone is free to leave any country, including their own.
B) Regarding Personal Relationship Every Weekend: The right to establish a personal relationship serves the child’s physical, intellectual, spiritual, educational, and cultural development. If the interests of the parent and the child conflict, the best interests of the child (çocuğun yararı) prevail (TCC Art. 182/II, 324, 325).
Assigning every single weekend to the non-custodial parent can lead to detrimental results. The custodial parent may be unable to spend quality time with the child or fulfill their educational and upbringing duties effectively. Weekends are periods where individuals feel psychologically more relaxed; if the child spends all such “privileged days” with only one parent while spending “stressful weekdays” with the custodial parent, this may lead to alienation from the custodial parent. Therefore, it is reasonable and fair that weekends and holidays be shared between parents.
CONCLUSION: For the reasons stated above and the additional grounds provided by the General Assembly, the local court’s decision to resist was found to be contrary to procedure and the law. It was UNANIMOUSLY DECIDED on 20.03.2013 to REVERSE (BOZULMASINA) the judgment of resistance.